THE REPORT FROM WASHINGTON

Natural Law or nihilism?

Ellis Washington is a former staff editor of the Michigan Law Review and law clerk at the Rutherford Institute. He is a professor of Constitutional Law, Legal Ethics, and Contracts at the National Paralegal College, a counselor at the American College of Education, and a founding board member of Salt and Light Global. Washington is a co-host of "Joshua's Trial," a radio show of Christian conservative thought. A graduate of John Marshall Law School and post-grad work at Harvard Law School, his latest law review article is titled, "Social Darwinism in Nazi Family and Inheritance Law." Washington’s latest book is a 2-volume collection of essays and Socratic dialogues – "The Progressive Revolution" (University Press of America, 2013). Visit his popular law/political blog, "EllisWashingtonReport.com, an essential repository dedicated to educating the next generation of young conservative intellectuals.

One-hundred fifty years ago, a social Darwinian revolution was unleashed upon civilization and later integrated into every conceivable aspect of society by the progressive movement and modern liberalism. The result, particularly since the 1960s: American law, culture and society have steadily devolved into anarchy and nihilism. Therefore, it has become increasing self-evident to me that civilization’s only hope to avert certain societal and constitutional collapse is a return to a Natural Law worldview.

What is Natural Law? Essentially Natural Law is the integration of law and morality. It was the original philosophy of the framers of the Constitution and served as the philosophical basis of all of America’s founding documents, including the Declaration of Independence, the Constitution and the Bill of Rights.

Positive Law, or legal positivism, is the separation of legality and morality. It is rooted in social Darwinism and in the totalitarian cult of liberalism and is the origin of many of the most infamous political philosophies and depraved tyrants of the 20th century.

The concept of natural law has taken several forms. The idea began with the ancient Greeks’ conception of a universe governed in every particular by an eternal, immutable law and in their distinction between what is just by nature and just by convention. Stoicism provided the most complete classical formulation of natural law. The Stoics argued that the universe is governed by reason, or rational principle; they further argued that all humans have reason within them and can therefore know and obey its law. Because human beings have the faculty of choice (a free will), they will not necessarily obey the law; if they act in accordance with reason, however, they will be “following nature.”

Christian philosophers readily adapted Stoic natural law theory, identifying natural law with the law of God. For Thomas Aquinas, natural law is that part of the eternal law of God (“the reason of divine wisdom”) which is knowable by human beings by means of their powers of reason. … Like the Stoics, Aquinas believed that a positive law that violates natural law is not true law.

Natural Law can be observed in America’s earliest history dating back to the Pilgrims who gave us our first and oldest constitution – The Mayflower Compact (1620) – and the Puritans, whose legacy founded America’s oldest and most venerated colleges and universities like Harvard, Yale, Dartmouth, Bowdoin, Andover, Middlebury, Amherst, Grinnell and Oberlin.

Natural Law, according to David Adams’ book, “Philosophical Problems in the Law,” consists of “principles and standards not simply made up by humans but rather part of an objective moral order, present in the universe and accessible to human reason.” Thomas Jefferson, in his Declaration of Independence, summarized Natural Law philosophy inherent throughout the Constitution as “… the law of Nature and of Nature’s God.” The original intent of the Constitution’s framers understood that liberty, justice and Veritas (truth) could only be achieved when law and morality were indissolubly and forever integrated as the foundation of the rule of law.

In 2008, I published a book on the world’s first international criminal trial titled: “The Nuremberg Trials: Last Tragedy of the Holocaust.” This opus is a Natural Law analysis of the legal history, jurisprudence and political philosophy used to judge the Nazi defendants at the Nuremberg Trials (1945-49). My primary efforts focused on the dichotomy between Positive Law (separation of legality and morality) vs. Natural Law (integration of law and morals) jurisprudence and how that fateful choice of Positive Law as the controlling jurisprudence of U.S. law, especially since 1900, has greatly contributed to the existential constitutional crisis plaguing America law, culture and society to this day.

In modern times we see the battle between Natural Law and Positive Law as the Senate Judiciary Committee moves forward in its efforts to confirm President Obama’s Supreme Court nominee, Elena Kagan.

What we refer to “liberal” or “activist” judges vs. “conservative” or “originalist” judges simply means those judges or justices on the Supreme Court who put their own personal policy preferences above fidelity to the black-letter text of the Constitution as originally written. To any rational observer, Elena Kagan clearly belongs to the former liberal-activist school of jurisprudence, and Justices Clarence Thomas and Antonin Scalia are outstanding examples the originalist, Natural Law school of jurisprudence.

Positive Law essentially sought to separate law from morality by replacing the framers’ original intent of Natural Law with a social Darwinian worldview. “Substantive due process” was a judge-created doctrine that first appeared in the infamous Dred Scott v. Sanford case of 1857, which held that people of African descent, whether or not they were slaves, were not protected by the Constitution and could never be citizens of the United States. Using substantive due process Dred Scott became precedent as activist judges began reading their own personal policy preferences, prejudices and politics into the Constitution and ignoring or castigating the original intent of the framers.

The solution to America’s 150-year constitutional crisis? Return to a Natural Law worldview. Only when Congress, judges, presidents and We the People humble ourselves under the mighty hand of God through Natural Law will civilization witness a true and lasting Renaissance of the mind, soul, spirit, politics and law. Our only other choice is the social anarchy and nihilism the Obama regime is daily unleashing upon America, purposely plunging this once-great nation into societal chaos as a pretext to embezzle more and more of the sacred inalienable rights of We the People.

Remember Rahm’s commandment: Never let a serious crisis go to waste!

Thomas Jefferson, one of the great Natural Law philosophers, said it best: In questions of power, then, let no more be heard of confidence in man, but bind him from mischief by the chains of the Constitution!